COURT OF APPEALS OF VIRGINIA
Present: Judges Bumgardner, Clements and Senior Judge Bray*
Argued at Chesapeake, Virginia
MIQUEAS RAMIREZ
MEMORANDUM OPINION** BY
v. Record No. 1825-01-1 JUDGE RUDOLPH BUMGARDNER, III
OCTOBER 8, 2002
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
Thomas S. Shadrick, Judge
Catherine L. MacLean (Office of the Public
Defender, on brief), for appellant.
Richard B. Smith, Senior Assistant Attorney
General (Randolph A. Beales, Attorney
General, on brief), for appellee.
A jury convicted Miqueas Ramirez of attempted malicious
wounding and use of a firearm during the commission of a felony.
He contends the trial court erred (1) in refusing to permit voir
dire about the specific range of punishment and (2) in refusing
to strike a juror for cause. For the following reasons, we
affirm.
The trial court refused to allow the defendant to ask the
venire the following question:
* Judge Bray participated in the hearing and decision of
this case prior to the effective date of his retirement on
September 1, 2002 and thereafter by his designation as a senior
judge pursuant to Code § 17.1-401.
** Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
Realizing that the range of punishment is 1
years [sic] to 10 years for the attempt
malicious wounding and three years for use
of a firearm, will you be able to carefully
consider the full range of punishment? Is
there anything that will keep you from
imposing either the minimum or maximum
sentences allowable under the law?
While the trial court did not permit the defendant to state the
range of punishment, it permitted general questions about the
jurors' ability to consider the full range of punishment.
Commonwealth v. Hill, ___ Va. ___, 568 S.E.2d 673 (2002),
held the defendant has no right to question a jury panel about
the range of punishment in a non-capital case. That case
controls this case. Accordingly, the trial court did not err in
refusing the tendered question.
The defendant also contends the trial court erred in not
striking juror Barbara Bowden. He maintains she expected the
defendant or his attorney to tell "his side of the story." If a
juror requires a defendant to testify or expects him to prove
his innocence, the trial court must exclude the juror for cause.
Breeden v. Commonwealth, 217 Va. 297, 298, 227 S.E.2d 734, 735
(1976). However, the record 1 of the voir dire does not support
the claim that juror Bowden expected the defendant to do either.
1
[DEFENSE COUNSEL]: Do you feel that you
are going to need some sort of explanation
from Mr. Ramirez before you could find him
not guilty?
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During general questioning of the venire, juror Bowden
answered that the defendant did not have to produce evidence or
testify, that the Commonwealth had to prove him guilty beyond a
reasonable doubt, and that the defendant was presumed innocent.
When the defendant indicated jurors Angeline Brown and Barbara
Bowden may have shaken their heads to indicate they expected the
defendant to put forth evidence, the trial court recalled the
two for further questioning. Defense counsel asked them
together whether they expected an explanation from the
defendant.
MS. BOWDEN: I'm Barbara Bowden. He has an
attorney to represent him, and I feel that's
all that is needed.
[DEFENSE COUNSEL]: An explanation from me?
MS. BOWDEN: I beg your pardon?
[DEFENSE COUNSEL]: An explanation from me?
MS. BOWDEN: No. You are going to tell, you
know, his side of the story.
[DEFENSE COUNSEL]: Okay.
MS. BOWDEN: Angeline Brown. Yes, I would
like to – He would have to prove his
innocence to me. Yes.
[DEFENSE COUNSEL]: Okay.
MS. BOWDEN: And that's with anybody. You
have to be proven innocent first.
[DEFENSE COUNSEL]: Okay.
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Juror Brown responded that she expected the defendant to
testify or prove his innocence. The trial court excused her.
Juror Bowden responded, "He has an attorney to represent him,
and I feel that's all that is needed." Then asked specifically
if she needed an explanation from defense counsel, juror Bowden
stated, "No. You are going to tell . . . his side of the
story."
The trial court clearly recognized the holding in Breeden
and differentiated between its application to the responses of
Brown and Bowden. 2 "The partiality or impartiality of an
individual juror is a factual issue best determined by the trial
court." Watkins v. Commonwealth, 229 Va. 469, 480, 331 S.E.2d
422, 431 (1985) (citation omitted). The trial court's
determination shall not be reversed absent a showing of manifest
error. Mu'Min v. Virginia, 500 U.S. 415, 428 (1991); Vinson v.
Commonwealth, 258 Va. 459, 467, 522 S.E.2d 170, 176 (1999),
cert. denied, 530 U.S. 1218 (2000). We conclude the record does
not support the contention of the defendant. Accordingly, we
affirm.
Affirmed.
2
Indeed, the defendant's brief cites to juror Brown's
statement in the appendix when contending juror Bowden answered
that she expected the defendant to testify or prove his
innocence.
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